The Warm Pool lawsuit is lurching toward a crucial decision in the next two weeks, and both sides have filed their last briefs. As we reported two weeks ago, the plaintiffs are asking Judge Susan Illston to issue an injunction ordering the City and School District to keep the Warm Pool open while the lawsuit runs its course in 2012 through a full jury trial in U.S. District Court in San Francisco.
On Nov. 29, the City and School District filed their responses in opposition to the injunction request: here and here, respectively. In return, the plaintiffs responded on Dec. 5 to the City and School District in separate filings: here and here, respectively. Judge Illston is expected to issue her decision before Dec. 15, the scheduled final closing date for the Warm Pool.
The legal arguments in the filings are complex, and we won't attempt to summarize all of them. The Berkeley Pools Campaign takes a neutral position in this case. But to our non-lawyer's perspective, the key points made by each side are summed up in these excerpts:
City:
Plaintiff's allegation that the Warm Pool's closure will leave Berkeley and the East Bay without access to an aquatics program for the disabled is also false. (...) The City's aquatics program will continue to remain accessible, as the King and West Campus pools are and will continue to be accessible to disabled users. Additionally as shown above, the Warm Pool is not the only warmer water pool available to plaintiff in the City, as the two Berkeley Y warm pools are nearby. The YMCA has three pools, of which two are maintained at warmer temperatures.
School District:
Four (4) professional structural engineers have provided their expertise on the structural deficiencies of the building and, in their judgment, the building will likely collapse in the event of a significant earthquake. If the 90 year old building collapses, the impact would be catastrophic. For the plaintiff, the harm is non-existent, he faces only the inconvenience of accessing a warm water pool facility a few hundred feet away at the YMCA. In contrast, forcing BUSD to keep the Old Gym open jeopardizes the lives of hundreds of Berkeley High School students, BUSD employees and members of the general public.
Plaintiff's rebuttal to City:
When there is only one pool which has the warm air and water temperatures disabled people need, and all the classes aimed at disabled people are offered there and nowhere else, the putative "access" to the other pools is not meaningful and not equal. Closing the Warm Pool, while keeping the other pools open, constitutes disparate impact discrimination.
(...) Asserting that when the Warm Pool closes disabled people should just “join the Y” indicates a stunning misunderstanding of defendants’ obligations under the law. First, defendants are public entities with the obligation to maintain the public programs they provide. They cannot simply cut them on the grounds that a private organization offers a similar program. The idea that able-bodied people can use public services but disabled people must join a private club is so beyond the pale that to plaintiff’s counsel’s knowledge, no public entity has ever asserted that defense before.
Plaintiff’s rebuttal to School District:
BUSD's main reason for closing the Warm Pool is to build new facilities. Though defendants protest that they are concerned with the Warm Pool's seismic safety, their previous behavior belies their new-found urgency. Until this motion was filed BUSD behaved as if the pool building, while not seismically ideal, was certainly safe enough to use. In fact, that was a reasonable position for the District to take. All the seismic reports demonstrate that the Swimming Pools building is (1) safer than the Gymnasium, (2) habitable, and (3) reparable.
(...) Over the last twenty years defendants neither fixed nor replaced the Pool; this "crisis" is entirely of their own making, and a violation of their obligation under the ADA to properly maintain their accessible facilities. The question for the Court is whether delaying demolition until a real equivalent program is in place is sufficient harm to defendants to overbalance plaintiff's civil rights and the public interest in a warm pool. Neither defendant produces evidence showing sufficient harm from delaying the demolition to justify depriving disabled people of their equal rights.
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